19 F.2d 699 | D.C. Cir. | 1927
This appeal is from a decree entered in the Supreme Court of the District of Columbia, permanently enjoining the Secretary of the Interior and the Commissioner of the General Land Office from proceeding to make a survey and plat of a strip or tract of land lying between lot 2, section 31, and lots 7 and 8, section 32, Tp. 32 S., R. 40 E., and the Indian river, in the state of Florida.
It appears that in 1859 a government survey was made of township 32, and the plat thereof was duly approved by the department in December, 1859. The plat discloses that the boundary lines of the lots in question border on the Indian river, a navigable stream. The lots were in due course patented by the United States, and are now owned by the appellees.
In 1923, one Walter Etching settled on a strip of land between the meander line of the survey as shown on the original plat and the Indian river. In 1925 Etching applied to the General Land Office for the survey of these lands, asserting Ms claim as a settler on public lands of the United States. Following tMs request, an official investigation was made in the interest of the Land Department, and the officer making the investigation, after finding that appellant Bras-well Realty Company acted in good faith in the purchase of the lands, the title to which reads, “River to ocean, with full riparian rights,” reported in part as follows:
“Tour examiner believes that the omitted area in this examination is large enough, and the attending physical conditions such, that the department is justified in asserting title to same, and in stipulating that same be surveyed aa public land of the United
The supervisor of surveys, in transmitting the report to the Commissioner of the General Land Office, recommended as follows:
“The configuration of the land, however, is such that I am of the opinion that it should not be considered as public land. Aside from the narrow strips or peninsulas extending into the tidal marsh, the land omitted from the original survey has an average width of approximately 8 chains. Considering the character of surveys originally executed in this vicinity, I am of the opinion that the original meander line through these sections conforms reasonably with the actual shore line, and that these lands should be considered as appurtenant to the surveyed lands in these sections, under the usual doctrine that the shore line and not the meander line forms the boundary. Accordingly I recommend that the application of Walter Kitching for the survey of these lands be denied.”
The Commissioner of the General Land Office, in his report to the Secretary of the Interior, recommended in part as follows:
“In my opinion, the failure to- include this particular tract of land in the original survey cannot be attributed to error or fraud on the part of the deputy surveyor, but rather that it is the result of the surveying practice being followed at that time. Considering the character of the original surveys in this vicinity, I believe that the original meanders of the Indian river through these sections conform reasonably with the aetual shore line. In view of the foregoing, I respectively recommend that the United States do not assert title to the excess lands in sections 31 and 32, Tp. 32 S., K. 40 E., Tal. M., Florida; that the application of Walter Kitching for the survey of said lands be denied; and that the said areas be considered as portions of the adjoining surveyed land under the usual doctrine that the shore line, and not the meander line, forms the boundary of lands disposed of under the plat of the original survey.”
Notwithstanding these reports, the Secretary directed a survey to be made, on the ground “that a substantial and valuable area, of land in place was omitted from the original survey, and that the title thereto rests in the United States; that title cannot be passed into private ownership, confirmed, and quieted, unless and until the land shall have been surveyed and disposed of under some appropriate public land law.”
The method of meandering navigable streams, in the survey of public lands in force -in 1859, appears in the manual of instructions as follows:
“The Meandering of Navigable Streams (Page 523).
“2. Both banks of navigable rivers are to be meandered by taking the courses and distances of their sinuosities, and the same are to be entered in the field book. At those points where either the township or section lines intersect the banlps of a navigable stream, posts, or, where necessary, mounds of earth or stone, are to be established at the time of running these lines. These are called ‘meander comers’; and, in meandering, you are to commence at one of these comers on the township line, coursing the banks, and measuring the distance of each course from your commencing comer to the next ‘meander comer,’ upon the same or another boundary of the same township, carefully noticing your intersection with all intermediate meander comers. By the same method you are to meander the opposite bank of the same river.”
It appears from the record that the original survey was made with great difficulty; the meander lines being extended between convenient points selected on the banks of the river. In some instances these lines passed over lands in place, and in other instances over water, which extended in from the main shore line. The contract under which this survey was executed embraced certain fractional townships bounded on one side by the Indian river and on the other side by the Atlantic Ocean, described in the contract as “scrap work or unfinished surveys not heretofore surveyed, on account of the difficulty of execution.” The lands in the township in question became subject to private entry at $1.25 per acre. They were filed upon and disposed of on this basis, and have remained in private ownership ever since. The conveyances from one owner to another have described the lands as bounded on the one side by the Indian river, and the title to the lands thus described has been -asserted by the various owners for over 60 years.
The courts have stated in many cases their understanding of the function of meander • lines in surveys of public lands bordering on navigable rivers. In St. Paul & P. Kail-
A recent cadastral survey discloses that the total amount of land in controversy, lying between the meander line, established by the 1859 survey, and the banks of the river, is 58.50 acres, coxxstituting a narrow strip, with an average width of about 8 chains.
It is the contention of the Secretary that he is vested with sole authority to ascertain and determine what constitutes public lands, what have been surveyed, what have been disposed of, what remain to be disposed of, and what are reserved. Unquestionably he possesses this authority where the determination and investigation relates to public lands of the United States, but in the matter of resurveys, and the correction of public land surveys, this authority is subject to limitations. Where the United States has already conveyed lands, as in the px*esent instance, the Secretary is without jurisdiction “to intermeddle with them in the form of a second survey.” Kean v. Calumet Canal Co., 190 U. S. 452, 461, 23 S. Ct. 651, 652 (47 L. Ed. 1134).
This limitation upon the power of the Land Dep aliment is further announced- in Cragin v. Powell, 128 U. S. 691, 699, 9 S. Ct. 203, 206 (32 L. Ed. 566) as follows: “It is conceded that this power of supervision and correction by the Commissioner of the General Land Office is subject to necessary and decided limitations. Nor is it denied that, when the Land Department has once made and approved a govenimental survey of public lands (the plats, (maps, field notes and certificates all having been filed in the proper office), and has sold or disposed of such lands, the courts have power to protect the private rights of a party who has purchased, in good faith, from the government against the interferences or appropriations of corrective resurveys made by that department subsequently to such disposition or sale.”
With these principles in mind, we think this ease is disposed of conclusively by the opinion in the case of United States v. Lane, 260 U. S. 662, 43 S. Ct. 236, 67 L. Ed. 448, in which the eouxt held that, where certain public lands, designated as lots bordering on a lake, were patented according to a plat showing meander lines established in the original survey, which lines at points covered lands in place and at other points passed over water extending back from the lake, and wkex-e the failure to include such lands within the meander lines was not due to fraud or mistake, but was consistent with a reasonably accurate survey, taking into consideration all the circumstances, the area included and excluded, the value of the land at the time of the original survey, and the difficulty of executing the survey at that time, the water formed the legal boundary of the lands patented.
The record in the present ease discloses that, when the original survey was made, the lands in question were of little value, and indeed remained so until the recent speculative development in real estate generally throughout the state of Florida; when the appellee corporation purchased the lands with a view of developing a town site, the purchase price, in this instance, involved a large consideration. In this respect the analogy between this case and the facts disclosed in United States v. Lane, supra, are very similar. In that case the court said:
“So far as the instant cases ax*e concerned, there is nothing in the circumstances to suggest the conclusion that any fraud was committed or palpable mistake made by Waxuen [the original surveyor]. At the time of his survey the lands were of such little value, the locality so wild and remote, and the attendant difficulties so great, that the expenditure of enex'gy and money necessary to run the lines with minute regard to the sinuosities of the lake would have been quite out of proportion to the gain. We are of opinion that the survey of 1839, except as to the two large tracts just mentioned, is not open to challenge. The precisely accurate survey of 1916-1917 would probably never have been made, but for the greatly increased value of the lands, due to the discovery of oil and gas therein.”
The acreage involved in the Lane Case was much larger than that involved in the present case, and it may well be inferred that the present move would never have been made or attempted, on the part of the offi-
In Mitchell v. Smale, 140 U. S. 406, 11 S. Ct. 819, 840, 35 L. Ed. 442, quoted with approval in the Lane Case, supra, the court, expressing its opinion as to the hardships which would arise from enforcing the rule here contended for by the appellees, said:
“We think it a great hardship, and one not to be endured, for the government officers to make new surveys and grants of the beds of such lakes after selling and granting the lands bordering thereon, or represented so to be. It is nothing more nor less than taking from the first grantee a most valuable, and often the most valuable, part of his grant. Plenty of speculators will always be found, as such property increases in value, to enter it and deprive the proper owner of its enjoyment; and to place such persons in possession under a new survey and grant, and put the original grantee of the adjoining property to his action of ejectment and plenary proof of his own title, is a cause of vexatious litigation which ought not to be created or sanctioned.”
The decree is affirmed, with costs.
